AZIZ AHMAD Versus THE STATE
The petitioner sought post-arrest bail in a case registered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 read with sections 511, 337-H(ii), 148, and 149 of the Pakistan Penal Code 1860, involving an alleged attempt to abduct a minor girl. The core legal question was whether the petitioner made out a case for further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898, given that it was a case of mere attempt and eye-witnesses had sworn affidavits exonerating him. The court held that since the charge was one of a mere attempt and eye-witnesses submitted affidavits disclaiming the petitioner's involvement, the case fell within the scope of further inquiry under section 497(2), Cr.P.C. The court laid down the principle that affidavits of eye-witnesses exonerating an accused coupled with the tentative assessment of a mere attempt can bring a case within the ambit of further inquiry warranting the grant of post-arrest bail.
- Whether post-arrest bail can be granted when an accused is charged with a mere attempt rather than the completed offence?
- Do affidavits of alleged eye-witnesses exonerating an accused provide sufficient grounds for further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Is an accused with no previous criminal record entitled to bail when the case against him calls for further inquiry?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 511, Pakistan Penal Code 1860
- Section 337-H(ii), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Aziz Ahmad, the petitioner through the instant petition seeks post-arrest bail in case F.I.R. No.80 dated 17-5-2003 under section 11 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with sections 511, 337-H(ii)/148/149, P.P.C., registered with Police Station Daira Din Penah District Muzaffargarh.
2. Briefly the prosecution case as per F.I.R. is that on the night between 16/17-5-2003 at about 11/12 (midnight) he along with his co-accused while variously armed had attempted to abduct Mst. Sumaira, 15/16 years old, the maternal-granddaughter of the complainant and in the process they have also resorted to firing. Accused Nazir Ahmad alias Naja, Atta Ullah and Mushtaq Ahmad were apprehended at the spot.
3. The motive behind the occurrence is that Ashiq Hussain accused had demanded the hand of the said girl in marriage. He was refused the same and he thereafter had forged Nikahnama showing her Nikah with him and suit in respect of the same is pending in the Court.
4. It has been contended on his behalf that he has falsely been roped; in that it is a case of mere attempt and not actual commission of the offence alleged; that the incident as has been mentioned in the F.I.R. had not taken place and this is so evident from the affidavit of the two alleged to be the eye-witnesses; and that he is behind the bars and previous non-convict.
5. Conversely, the learned State Counsel has opposed the petition on the ground that he is named in the F.I.R.; and that he along with his co-accused while variously armed had committed the above mentioned act.
6. I have carefully considered the submissions made from both the sides with the help of available record.
7. Allegedly, he along with his co-accused while variously armed had attempted to abduct the said girl but they due to the attraction of the people at the spot could not succeed in their design. There is with the petition the affidavit of Rahim Bakhsh and Ramzan, the alleged to be the eye-witnesses of the incident. They in the same have exonerated him of the charge.
8. Besides than this, it is a case of mere attempt. Hence, his case is covered under subsection (2) of section 497, Cr.P.C. calling for further inquiry into his guilt.
3. He is behind the bars and stated to be previous non-convict. I, therefore, accept this petition and admit him to bail provided he furnishes bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Muzaffargarh/trial Court.
N.H.Q./A-910/L Bail allowed.